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The Case of Captain R.

by AMOS HAREL

The affair of the `confirmed killing’ carried out by Captain R. may blow up into a trial concerning the behavior of IDF soldiers in the territories in recent years. It seems the Israeli attitude of `don’t ask, don’t tell’ is about to come to an end.

The charges submitted this week at the military court of the Southern Command against Captain R., a company commander in the Givati Brigade, contains only two pages and five articles of indictment. The facts are described in dry, legal language, but the story they tell threatens to become the most significant trial in the history of the second intifada. This is because what happened on the morning of October 5, 2004, near the Girit outpost overlooking Rafah, may have ramifications that extend far beyond the Gaza sector in which it occurred.

Everyone agrees that the case of R. is exceptional. It is not every day that a company commander fires at close range at the body of a Palestinian child sprawled on the ground before him (and the details were confirmed in his confession). However, it seems the IDF will not be able to continue for long to make do with dismissing the soldiers and their commanders as "bad apples." The Girit incident has long ceased to be only the story of R., the officer from the Druze village in the Galilee. If a real court battle is conducted in this case, as the defense apparently plans, the trial of the company commander will turn into a discussion about the IDF’s behavior in the Gaza Strip during the past years and about the freedom of action it has allowed itself in the name of confronting terror in this war.

The R. affair has been portrayed so far as a case of the "confirmed killing" of Iman Alhamas, a 13-year-old girl from Rafah. The media (based on information volunteered by soldiers in the company to the daily Yedioth Ahronoth), and subsequently the army, have focused on one very dramatic part of the incident. However, there are many aspects to this case and the discussion of these other aspects only began this week, following the broadcast of audio recordings from the IDF communication network on Channel 2’s "Fact" program. In addition to verifying the killing, the tapes also touch upon the soldiers’ actions in the incident, the rules of engagement, the Military Advocate General’s policy of investigation and prosecution, the values of combat in the territories and the responsibility of the top political echelon for what is happening.

R., the man at the center of the scandal, looked a bit confused this week by the public tempest raging around him. His acquaintances found that he was firmly convinced of his innocence and prepared to fight for it. They also noted that he was extremely naive about the entire legal and public procedure. R. was trained to storm the enemy, not to ask questions. He was surprised by his superior officers’ reservations about the "confirmed kill" and no less shocked to see soldiers at the Kastina base hurrying home when the hearing in the military court extended beyond 5 P.M. From his perspective, there is an unbridgeable gap between Rafah and Kastina, and certainly between Rafah and the IDF General Staff in Tel Aviv.

And these gaps are already expressed in the basic facts of the incident. The chief of staff, Moshe Ya’alon, and other senior officers claimed this week that there is no "confirm kill" practiced in the IDF. How is this claim consistent with the testimonies by dozens of combat soldiers about the practices employed in the field, and with the testimony of the company commander himself on the military network? ("I confirmed the killing.") The explanation involves another term – "neutralizing a threat" (also referred to as "confirming neutralization"). "Confirming the killing" in this incident had two stages: At first, R. stormed out of the army post and, according to his testimony, fired two bullets at the girl from close range. Then, he headed back toward the outpost, reconsidered and returned to the girl’s body, firing another round. There is some dispute over the question of where this second round hit. The prosecution argues that he aimed at the girl’s body. R. changed his testimony; at first, he said he fired toward the houses in Rafah and later he claimed he fired toward the ground, near the girl’s body.

The IDF trains its fighters to "neutralize threats" – when storming an enemy and as long as an ostensible threat still exists, it is permitted to fire at the enemy from close range to confirm this threat is neutralized. It is prohibited to fire at the enemy after the battle is over, if he is clearly in a helpless situation. R. and others stretch this definition to include the initial two shots, even though the girl was apparently dead already and the company commander should have seen from close range that she was a child. With regards to the second volley of gunfire, there is no disagreement that it was forbidden to fire a round at her body. The argument revolves around the facts: Did R. really aim the second round of shots at her? Incidentally, from the remarks made by Ya’alon Wednesday in an interview with Yedioth Ahronoth, it seems his criticism of R. focuses on this second round of gunfire. In any case, the military prosecution is charging the company commander with illegal use of his weapon during both stages of the shooting.

Cursory investigations

In all of this intensive activity, the role of the soldiers is missing. There is no mention of them in the indictment. The prosecutor, Captain Ran Cohen, explains that it is impossible to relate to the other soldiers because it is not clear which of them fired the bullets that hit the girl and what they knew when they fired. Colonel (ret.) Aharon Shlein, who watched the "Fact" broadcast this week in shock, finds this hard to accept. Shlein should know. He is an experienced military judge, who served as the president of the special military court, as well as the courts of the Southern and Central Commands, toward the end of the first intifida.

"The real story in this case," he says, "is the fact that soldiers receive an instruction to fire at a distant figure, some of them know it is a child and no one speaks up and says a word. There was a blatantly illegal order here, which an entire company uniformly obeys, but we are all focusing only on the confirmation of the killing."

Recently, as a private defender, Shlein represented a deputy battalion commander in the artillery corps, Captain Zvika Koretzky, who was convicted in two legal proceedings of causing the death of a Palestinian teenager through negligence. The encounter with the military prosecution’s calculations did not leave a particularly good impression on Shlein. Koretzky, who encountered Palestinian rioters, fired a warning shot at what he described as a "target wall" (an object selected at a safe distance from the crowd). The bullet hit a teenager and killed him. The prosecution in the case argued that there is nothing in the rules of engagement that allows for firing at a "target wall." The prosecution retracted this claim only after the defense presented dozens of investigations, some of them headed by the chief of staff himself, in which this expression appeared. This did not do much to help Koretzky, the most senior officer to be convicted on a weapons infraction in the current war.

Something strange happened here, Shlein says: "For three years, the prosecution consistently avoided Military Police investigations and indictments. Suddenly, in the past year, there is a wave of indictments. This raises the suspicion that somebody changed the policy without declaring it. This is not fair to the soldiers."

Shlein, by the way, believes the prosecution, from the outset, should have opened an investigation into every incident in which a Palestinian civilian was killed, as was the practice during the first intifada. He also raised this argument (and a demand for more uniform guidelines) in the appeal he submitted on behalf of Koretzky. At least one of the judges apparently agreed with him – Amnon Strashnov, a retired brigadier general who served as military advocate general during the first intifada. This week, Strashnov publicly leveled criticism against the IDF’s policy of cursory investigations.

Double message

Returning to the case of R., one of the articles of indictment against him contains truly explosive potential. The prosecution charges him with "exceeding authority to an extent that risked lives" because he independently defined guidelines for opening fire in a special security zone around the outpost. R., the prosecution claims, gave directives on a number of occasions to open fire against anyone penetrating this zone, and after the girl was killed he declared: "Even if it were a 3-year-old [who entered the zone - A.H.], we have to kill him." His directives indeed go beyond the official guidelines in the Gaza Strip, but like the matter of verifying a killing, there is a question of the oral tradition versus the written doctrine. Throughout much of the conflict, the actual behavior of the IDF in the Gaza Strip has not been very different from R.’s blunt definition. And because the Gaza Strip has become one big security zone – encompassing military posts, settlements, central roads and the Green Line – dozens of Palestinian civilians have been killed in situations like these.

Only the intervention, slow and hesitant, of the military prosecution has gradually reined in this shooting. One of the generals on the General Staff says the rules of engagement in the Gaza Strip "bordered on war crimes." At the beginning of the confrontation, the commander of a reserve tank division told his battalion commanders serving in the Gaza Strip to ignore the rules of engagement practiced there because they were too lenient. If the defense in R.’s case decides to call to the witness stand the former regional commanders and division commanders, the IDF can be expected to experience considerable embarrassment.

And here is actually the heart of the matter: Did the directives of the senior echelon leave too much room for interpretation by the commanders in the field? What did the senior brass really know about what was happening on the ground, and how much did some of the top officers encourage, through hints or disregard, the attitude whose unsavory results have reached a peak in the Girit incident? Ya’alon, as chief of staff, is much more sensitive to these questions than his predecessor, Shaul Mofaz. But this is not always enough. The fact is that even today, as everyone denounces R., Mofaz and others summarize Operation Days of Penitence in the northern Gaza Strip as a success because after 150 Palestinians killed and dozens of homes demolished, Hamas has stopped firing Qassam rockets. Among these casualties – and the commanders in the Gaza Strip are well aware of this – were also dozens of civilians. That is, to kill civilians is not always such a bad thing. What is this if not a double message?

Few understand this better than the chief of staff himself. During the past two weeks, Ya’alon had devoted much time to explaining it, both within and outside the IDF. In meetings with reporters and gatherings of commanders, he emphatically presents his stance regarding the resignation-dismissal of the commander of the Gaza division, Brigadier General Shmuel Zakai. In the past days, he has also added resolute explanations about the company commander. (The two cases are connected because the rift between Ya’alon and Zakai grew wider as a result of their disagreement over how to deal with R.) Ya’alon feels a real media offensive is being waged against the IDF and him personally, stoked by political players. This is happening now, just when the chief of staff feels he should be reaping the fruits of his approach, with Arafat gone from the scene and Ya’alon’s favorite Palestinian, Abu Mazen, taking over as chairman. After all, it would seem that Abu Mazen is generating a Palestinian "searing of consciousness" by turning to the path of negotiation and rejecting terror. But instead of enjoying, Ya’alon opens the newspapers every morning and finds that columnists are blaming him for a deteriorating ethic of combat in the IDF and calling for his resignation.

Embarrassing testimonies

The chief of staff, convinced that the media are biased and blowing things out of proportion (including the recordings broadcast in "Fact") is waging a counter-campaign. His problem is that reports from the dark corners of the occupation continue to land on him: Yesterday Haaretz published pictures of a Palestinian forced to play his violin for soldiers at a checkpoint near Nablus. And there were also the horrifying pictures in Yedioth of soldiers abusing Palestinian corpses. (At least in this case, the decision to open a military police investigation reeks of hypocrisy. The main story in the article, about soldiers from the ultra-Orthodox Nahal unit abusing the body parts a suicide bomber, was published in the Kol Ha’ir newspaper by Uri Blau three years ago. Then, the IDF did not lift a finger to investigate.)

The flood of embarrassing testimonies began with demobilized soldiers, members of the Shovrim Shtika (Breaking the Silence) group. But this was followed by a letter by four commanders from the elite Shaldag unit which focuses on injustices the officers witnesses in Gaza. These testimonies prompted Ya’alon to appoint a team to examine how closely the IDF has adhered to its declared combat values during the long war in the territories. The team, headed by the commander of the Bahad 1 officer training base, Gal Hirsch, is still conducting its study. One of its goals, a senior member of the General Staff told Haaretz this week, is to provide a broader body of data regarding the scope of what the IDF insists on continuing to call "exceptions." Studies conducted to date indicate a higher-than-expected level of exposure by soldiers to ethics violations. After the questionnaires have been distributed to most of the officer course cadets, it will be possible to assess the severity of the situation.

During the initial months of the war in the territories, Hirsch was the commander of the Binyamin Brigade (Ramallah). On the brigade’s headquarters in Beit El, the slogan is proudly displayed: "To be victorious and remain human beings." One of the senior commanders in the territories, who is much more cynical that Hirsch, says that in the current conflict it will be enough for him if "we don’t lose and we don’t end up being despicable." It seems that for too long, many Israelis, including senior officers and civilians, wanted to believe that the war against Palestinian terror could be waged in a nearly sterile fashion – occupation with the smell of laundry detergent. But what transpired at the distant Girit outpost makes it clear again how impossible this expectation was.

One of the interesting reactions to the "Fact" broadcast was from mothers of IDF officers serving in Gaza. Some of the officers said their mothers were shocked and openly expressed concerns that this is what was also happening in their son’s units. It seems the Israeli attitude of "don’t’ ask, don’t tell" – with regard to IDF soldiers and the evils of combat in the territories during the years of confrontation – is about to come to an end.

When the dust settles from the case of Captain R., the tapes from Girit that were broadcast this week will remain: the report from the lookout soldier – "She [the girl] is behind the trench, a half a meter from it. She’s frightened to death. The shots landed really close to her" and the apathetic wrap-up by the company commander – "Here’s the situation report: We opened fire and killed her. I also confirmed the killing."

It seems no coincidence that many of the most severe incidents exposed in the current war took place in the distant Rafah area, where the Palestinians have fought stubbornly against the IDF in an effort to ensure the continued flow of weapons smuggled via tunnels from across the Egyptian border. Here, in the "wild south," IDF soldiers killed the left-wing activist Tom Hurndall (two soldiers are even standing trial for this now for both the firing and their attempt to cover up the affair). And here is where the American activist Rachel Corrie was crushed by an IDF bulldozer. But the first incident that occurred in Rafah, nearly three years ago, provides a illustration of the gap between the declarations by commanders about the IDF’s combat norms and the implementation of these norms in the field.

In January 2002, in response to the deaths of four soldiers in the Africa outpost, the IDF decided to demolish a line of houses on the other side of Rafah, along the Philadelphi corridor. The army spoke about razing a limited number of uninhabited houses, but the Palestinians claimed the real number of houses destroyed was much larger, that some of houses were inhabited and that some of the residents escaped by the skin of their teeth from the bulldozers. The head of the Southern Command at the time, Doron Almog, was interviewed on television and emphatically denied the Palestinian accusations. But when Almog began to investigate, he discovered other facts.

First, it became clear that the number of demolished homes was closer to the Palestinian assessment. The operation was conducted during the night and the commander of the force, an officer with the rank of lieutenant colonel, erred in identifying a palm tree that was designated as the border of the area slated for demolition. The bulldozers felled a different tree, further away, and this led to an additional row of homes being destroyed by mistake.

Almog was also in for a surprise with regards to the question of whether the homes were inhabited. The major general called in all of the parties involved in the operation, including two men named Vaknin and Dima, who operated the D-9 armored bulldozers. "How do you verify that no one is in the home?" Almog asked the drivers and learned that there are two schools of thought. According to the Vaknin method: "First, I give a small hit to a wall with the bulldozer’s blade. The wall cracks. And then, if I see people fleeing the house, I know it is inhabited." Dima had a different method: "The first thing I do is to knock the water tank off the roof. If water spills out, it indicates the house is inhabited."

AMOS HAREL writes for Ha’aretz, where this report originally appeared.